Fast-Tracked Unfairness

I. Summary

Military
came to our house and started to beat us. We didn't understand why ... They
took my parents and siblings to different prisons. The prison I was taken to
was underground and close to an airport. I was there for around six months and
raped every day ... I am scared it will happen again if I return.

— Roseline X., Human Rights Watch interview July 3,
2009

Roseline is a soft spoken young woman from the Democratic
Republic of Congo (DRC). She says she does not know where her family is, with
the exception of one sister who lives in the UK. She says she was continuously
raped while in prison in the DRC. After escaping, she had to support herself as
a sex worker. With the help of one of her clients, in April 2009 she travelled
to the UK. She then claimed asylum through the Home Office at the Croydon
public inquiry office. The UK Border Authority (UKBA) decided at a screening
interview that her case was suitable for processing in the Detained Fast Track
(DFT) procedure, which for women is run out of the Yarl’s Wood
Immigration Removal Centre near Bedford.

DFT is an accelerated procedure for assessing asylum
intended for claims by men or women that, according to the UK Border Agency,
can be decided “quickly.” It is inherently unsuitable for complex
cases—and the cases of both men and women can be complex. Indeed, more
men than women are referred into the procedure. However, this report focuses on
the use of DFT to process claims by women because claims that involve
gender-related issues can be particularly complex, especially when they involve
persecution by private individuals and the state’s failure to provide
adequate protection, and assessing them fairly can involve practical
challenges.

After a woman is referred into the procedure, her claim is
decided within two or three days. If refused—and in 2008 96 percent of
claims were refused on first instance—she has two working days to appeal.
This has to be heard within 11 days, meaning from start to finish the whole
process takes around two weeks. All this time she is kept in detention, where
she will remain pending deportation should her appeal fail. Since May 2005 over
2,000 women have been detained by the UK Home Office in Yarl’s Wood while
their claims were assessed. In 2008 91% of appeals were refused.

The system is not rigorous enough to meet basic standards of
fairness. This report focuses on its particular shortcomings as regards women,
especially when it comes to properly assessing complex gender related claims.
On this issue even the Home Office’s own quality team agrees: in 2006 it
concluded that the DFT procedure was not sufficiently “robust” or
substantive to enable it to identify such claims. However, complex gender
related claims are still regularly referred into the procedure.

In this report, Human Rights Watch is not assessing the
merits of the claims made by the women we interviewed. But their asylum claims
all had complex gender-related dimensions to them and involved consideration of
the state’s failure to provide them with protection—yet the cases
had been placed in DFT.

Take the case of Fatima H. from Pakistan, who says her
locally powerful husband, a man with close links to the police, subjected her
to a sustained regime of domestic violence from which she had no way of
escaping in Pakistan. Or Xiuxiu L. from China, who says she was trafficked into
the UK after being held as a sex slave for five years. Or Aabida M. from Algeria, who said her affair outside of marriage led to threats from her family to kill her.
Or Omar B., from Pakistan, a female to male transgender person, whose
relationship with a woman led her father to assault him and his family to
abandon him. Or Lisa O. from Kenya who says she was displaced in violence
following elections in 2007, enslaved and raped by a man initially promising
her shelter, and then forced to travel with him to the UK where she was
abandoned.

Some of these individuals were eventually granted asylum (in
most cases on appeal against an initial refusal or after a lengthy judicial
review). But others were rejected—and all were considered by UKBA
officers to have cases that could be decided quickly.

Many women who claim asylum in the UK base the claim on violence and persecution by non-state actors like family members or
their husband, which raises immediately the complex issue of lack of state
protection. Organizations working with asylum-seeking women report claims
because of trafficking for sexual or labor exploitation, forced marriage,
forced sterilization, domestic violence, female genital mutilation, threat of
“honor” killings and rape. Some estimate that more than half of
women applying for asylum are victims of sexual violence.

The UK is entitled to control its borders and to remove
people with unfounded asylum claims, but is obliged to ensure that individuals
in need of international protection have access to fair refugee status
determination procedures.

A fundamental problem that permeates each stage of the DFT
is failure to follow the UKBA’s own gender guidelines, a comprehensive
document containing important safeguards for women in the asylum process. These
point out the complexity of many women’s situations and the factors that
UKBA officers need to take into account. Implementation of the guidelines,
however, is neither consistent nor universal.

This compounds the challenges to
fairness inherent in the DFT procedure as a whole. Problems start with the
initial screening interview. This is the first point of contact between a UKBA
officer and an asylum-seeker—the point at which an applicant applies for
asylum. This interview does not involve any substantive questions about why an
applicant is claiming asylum. Nevertheless, an assessment of her immigration history
and credibility is made and the UKBA officer decides how the case should be
routed. Many complex cases are inappropriately routed into the DFT as opposed
to the general asylum procedure, despite the stated intention that DFT is there
to deal speedily with straightforward (or “quick”) claims.

Once in the DFT procedure, women are on a fast-moving
treadmill with structural features inhibiting or even preventing them from
making their cases effectively. When women arrive at Yarl’s Wood, they
will often have their asylum interview the next day. Most only have an
opportunity to consult their duty solicitor in a short conversation over the
phone. There is little opportunity to build trust, and women, especially in
cases involving rape or abuse, may only reveal relevant information late in the
process, or not at all. There is limited opportunity to access expert evidence,
such as medical reports. The UKBA officer who conducts the asylum interview,
known as the case owner, decides whether or not asylum should be granted.

That the trauma of rape can give rise to feelings inhibiting
a woman from going to the police is, for example, recognized in criminal court.
However, an asylum seeker is expected to immediately tell strangers—UKBA
officers and legal representatives—of any violence, including sexual
violence, that she has gone through. Solicitors report and refusal letters
confirm that delay in mentioning critical facts about sexual violence often
leads case owners to conclude that the information is not credible. Women
seeking asylum are also disadvantaged by the lack of female interviewers and
interpreters which can further inhibit full disclosure of experiences.

Human Rights Watch is also concerned about the incorrect use
of information and use of inappropriate information by case owners to support
assessments. Our research uncovered examples of apparently medically unqualified
case owners, for example, dismissing the conclusions of medical reports. Country
of Origin Information (COI) reports are not available for many of the countries
from which women in DFT come. For countries that generate fewer asylum seekers COI
key documents are prepared—brief country profiles with an indexed list of
other sources. These are more difficult to use in the short timeframe available
for decision makers. Finally, UKBA case owners have inappropriately used Operational
Guidance Notes, brief subjective UKBA summaries of the political and human
rights situation in a country, as background information. Decision makers often
appear to be uninformed or fail to take into account women’s situations
and status in their country of origin.

Women have only a few days to prepare their appeal, often
giving them insufficient time to gather expert reports and other evidence that
may be needed to support their asylum claim. About one third of women who are
refused at first instance find themselves without legal representation at the
appeal stage because free legal assistance is only granted to those whose case
passes a merits test—an assessment by a solicitor that there is more than
a 50 percent chance of success or that the chance of success is
“borderline or unclear” but of “overwhelming
importance” to the client. Solicitors face a considerable disincentive
against taking on what may at first sight appear to be a marginal
case–since 2005 the Legal Services Commission has required legal
representatives to win 40 percent of their cases if their contract to provide
legal aid is to be renewed.

If their claim is rejected, women are
in theory then removed from the country. However, some cannot obtain the
necessary travel documents, or are not accepted back by the destination for
deportation. Such women remain in detention, sometimes for a couple of days,
but sometimes for as long as ten to twelve months.

All the challenges to a fair hearing posed by the speed and
characteristics of the DFT procedure are exacerbated by the fact of detention. Detention
makes the already difficult task of preparing a case more difficult. Detention
cuts someone off from the outside world and even though a woman can communicate
by phone, there are limits to who she can access and what information she can
gather. Beyond the practical difficulties, being in detention does not create
the conditions encouraging women to open up about the often very intimate issues
behind their claims. Therefore detention should only be used where absolutely
necessary, normally to prevent someone who is about to be deported
disappearing, and the state authorities should have to show the necessity for it
in each individual case.

Speedier decision making needs to be balanced with the state
requirements to fulfill their obligations under international human rights and
refugee law. The correct test of an asylum system is that those in need of protection
receive it. Asylum seekers have a fundamental right to a full and fair
consideration of their claims—an obligation not met in the DFT procedure.

The flaws within the DFT
procedure—the screening process, the breakneck speed that militates
against the effective preparation and presentation of a claim, the limitations
on legal representation, the difficulties of accessing expert evidence in the
time available, and the very fact of detention itself which makes the whole
process of building a case even more difficult—leads Human Rights Watch
to conclude that it should be abolished.

In the interim, more rigorous procedures should be put in place to
ensure complex claims do not get routed into the DFT procedure. These should
include adding complex gender-related
persecution claims, such as alleged sexual violence and domestic violence, to
the list of “claims unlikely to be accepted into fast track” in the
suitability guidance note for routing into DFT. The criteria for routing a person through DFT should be
clarified, including the factors that permit a claim to be decided
“quickly”. The asylum interview
should (in line with the successful Solihull pilot) allow time for the
gathering of evidence before an initial decision is made, even if this means an
added few days before the initial decision is taken. The right to apply for
bail should be retained during this process.

Methodology

This report is based on research by Human Rights Watch in London, Bedford, Croydon, and at the Yarl’s Wood Immigration Removal Centre in the UK which took place from May to July 2009. Fifty interviews were conducted for this report,
including with seventeen women with direct experience of the Detained Fast
Track (DFT) system. These interviews took place with women while they were
either going through DFT at Yarl’s Wood, after they had gone
through the procedure, when they were taken out of the detained fast track
procedure, or when they were being removed from the country. Human Rights Watch
also conducted interviews with solicitors and barristers providing legal advice
and assistance to women in the fast track procedure. Interviews were also
conducted with nongovernmental organizations (NGOs), representatives of the
United Nations High Commissioner for Refugees (UNHCR) to the UK, social workers, and volunteers. In addition, Human Rights Watch interviewed three employees of
the UK Border Agency (UKBA).

All interviews were conducted in English. They were
conducted in the visitor’s room at the detention center or at places convenient
to the interviewees, and always in a private setting. No compensation or
any form of remuneration was offered or provided to any person interviewed for
this report. In three cases, Human Rights Watch reimbursed women for the costs
incurred in travelling to the place of interview.

All participants were informed of the
purpose of the interview and the way in which their stories would be documented
and reported. Participants were informed of their right to stop the interview
at any time. All participants gave their verbal consent to be interviewed and
all names have been changed to protect their identity.

This report does not aim to determine
whether the asylum claims discussed were valid or not, but rather whether the
detained fast track procedure fully and fairly examines these claims.

II. Recommendations

The flaws within the DFT
procedure—the screening process, the breakneck speed that militates
against the effective preparation and presentation of a claim, the limitations
on legal representation, the difficulties of accessing expert evidence in the
time available, and the very fact of detention itself which makes the whole
process of building a case even more difficult—leads Human Rights Watch
to conclude that it should be abolished.

In the interim, Human Rights Watch recommends:

To the Home Office and
UK Border Agency

More rigorous
procedures should be put in place to ensure complex claims do not get
routed into the DFT procedure, including:

Add to list of “claims unlikely to be
accepted into fast track” in the suitability guidance note for routing
into DFT, complex gender-related persecution claims, such as victims of sexual
violence and domestic violence.

Clarify
the criteria for routing a person through DFT, including a clarification of
factors that permit a claim to be decided “quickly”;

The asylum interview should
(in line with the successful solihull pilot) allow time for the gathering
of evidence before an initial decision is made even if that means an added
few days before the initial decision takes place. The right to apply for
bail should be retained during this process.

Guarantee the full
implementation of the Gender Guidelines during the fast track procedure;

Show that detention is being
used only because all other alternatives are unsuitable and detention is
therefore necessary and proportionate;

Ensure there is up to date
country of origin information for all countries from where people are
routed into DFT, that is objective and includes information on
gender-related issues, such as domestic and sexual violence, trafficking
and FGM, and state action to protect and prevent;

Provide clear guidance to all
case owners on the distinction between Country of Origin Information
reports and Operational Guidance Notes;

Make sure the correct
country information is used, not just the Operational Guidance Notes and
ensure their correct interpretation;

Instruct UK Border Agency case
owners to follow the UNHCR guidelines on internal relocation and they
should have particular regard to country of origin information which
describes the position of women in the area of proposed internal
relocation;

Ensure the availability of
female case owners for all women going through DFT, as well as female
interpreters and doctors in Yarl’s Wood.

Establish and deliver a
specific and detailed training program for all case owners in the asylum
system which deals with gender-related issues in the asylum process and
ensures all case owners are aware of their obligations under the UK gender guidelines and International human rights law.

Record the reasons why a person is taken out of fast track
and placed back into the regular asylum procedure as well as the moment of
that decision, and publish this information.

To the Asylum and
Immigration Tribunal

All immigration judges should
follow the UNHCR guidelines on internal relocation and they should have
particular regard to country of origin information which describes the
position of women in the area of proposed internal relocation;

Restore the Asylum and Immigration Tribunal gender
guidelines and ensure their implementation through training.

To the Independent
Chief Inspector of the UK Border Agency

Investigate whether the
detained fast track procedure (including its implementation in practice)
is in line with UK government guidelines and, in particular, the gender
guidelines.

Inspect the quality and use of Operational Guidance Notes,
in light of the UKBA gender guidelines.

To the Legal Services
Committee

To the UK
Parliament’s Home Affairs Committee

Launch an inquiry specifically into the legislation as
well as practice of the Detained Fast Track procedure, taking into account
the specific challenges faced by women seeking asylum in the UK.

To the European
Commission

Limit the use of fast track
procedures and proscribe the routing of vulnerable groups through
accelerated procedures by amending the Asylum Procedures Directive, in
particular Article 23.

The European Asylum Support Office, launched at the end of
2009, should provide extensive training on the complexity and validity of
women’s claims for asylum.

III. Background

Since March 2007 the Home Office has processed all asylum claims
in the UK under the New Asylum Model (NAM), which was first laid out in the
Home Office’s five-year immigration strategy, “Controlling our
borders: Making migration work for Britain,” published in 2005.[1]
The stated aim of this strategy is to introduce a faster, more tightly managed
asylum process, with an emphasis on greater control of the whereabouts of
asylum seekers and rapid and increased numbers of removals from the UK. An important part of the NAM is the procedure known as Detained Fast Track (DFT).

As described in the summary, DFT is inherently unsuitable
for assessing complex cases—and the cases of both men and women can be
complex. Indeed, more men than women are referred into the procedure. However,
this report focuses on the suitability of DFT for processing claims by women
because claims that involve gender-related issues can be particularly complex,
especially when they involve persecution by private individuals and the
state’s failure to provide adequate protection, and assessing them fairly
can involve significant practical challenges.

The Standard Asylum
Procedure

A person may claim asylum in the UK either on arrival at the
port of entry, or at the UK Border Agency (UKBA) office in Croydon.[2]
The first interview, known as the “screening interview,” aims to
establish the identity of the asylum seeker, their route into the UK, liability to return to a third country (under the so-called “Dublin II
Regulation”), whether or not they should be detained, and their
suitability for the fast track procedure.[3] The interview’s
purpose is not to establish the potential validity of the claim, but to elicit
basic information about the asylum seeker. At this stage the UKBA does not ask
detailed questions about why an applicant claimant is seeking asylum.[4]

If the applicant is routed through the standard procedure
(exceptions, including persons routed into DFT, are discussed below), the UKBA
will give them an appointment at a later date to return to the Home Office. The
applicant is given the details of a Home Office official responsible for
processing an application for asylum from the beginning to end, known as the
case owner, and is not usually placed in detention at this stage.[5]

On the appointed date, the case owner conducts a more elaborate
“asylum interview” which addresses the reasons for claiming asylum.
According to information given by UKBA to asylum-seekers, “The full
interview is your only chance to tell us why you fear return to your
country.”[6]
The case owner will give the applicant a list of legal representatives, but it
is the responsibility of the asylum seeker to contact the legal representative
and arrange for them to be at the interview. The legal representative has five
days after the interview (which can be taped) to submit new evidence to the
case owner.[7]

To be recognized as a refugee in the UK, an applicant must prove that they meet the criteria laid down in the Convention relating to the
Status of Refugees (the Refugee Convention), to which the UK is a party.[8]
A refugee is defined as someone who:[9]

Has a well-founded fear of persecution because of his or
her race, religion, nationality, membership in a particular social group,
or political opinion;

Is outside his or her country of nationality;

Is unable to avail himself or herself of the protection of
his or her country of nationality or habitual residence, or to return
there, for fear of persecution.

There are three possible outcomes of an asylum claim:
the applicant may be recognized as a refugee and given five years limited leave
to remain in the UK, they may be granted an alternative form of protection, or
their claim may be refused.

If no Refugee Convention reason can be identified, UKBA
decision makers or Asylum and Immigration Tribunal judges must consider whether
the return of the applicant would breach her human rights, and if so consider
subsidiary protection,[10]
either through humanitarian protection or “discretionary leave”.[11]
This is however, is explicitly “intended to be used sparingly.”[12]
To qualify for humanitarian protection, the applicant has to show that they
meet the criteria laid down in the European Convention for the Protection of
Human Rights and Fundamental Freedoms incorporated into UK domestic law through the 1998 Human Rights Act.[13]

If a claim is refused, the applicant will receive a
“refusal letter”, setting out the reasons for refusal. An applicant
then has the right to appeal against the initial decision by the case owner
within two weeks of receipt of the refusal letter and before the Asylum and Immigration
Tribunal.[14]

After refusal at appeal, the claimant can ask for a
reconsideration hearing. An immigration judge will look at the case and grant reconsideration
if the Tribunal may have made an error of law and there is a real possibility
that the Tribunal would decide the appeal differently on reconsideration.[15]
If the immigration judge considers the above criteria are met, he will order a
reconsideration of the case. This means a new judge decides whether in fact a
material error of law was made, and if so, a fresh appeal has to take place.[16]

As the final possibility for scrutiny of UKBA’s
decisions, the High Court has the power to review immigration and asylum
decisions by judicial review. An asylum seeker who was rejected throughout the
process and is given an order to be removed can ask for a review of the
process. Judicial reviews are a challenge to the way in which a decision was
made, rather than the rights and wrongs of the conclusion reached.[17]
Again, there is first a judgment on whether a judicial review should be granted,
and if so, a ruling on whether UKBA needs to reconsider their initial decision.[18]

If this is refused, UKBA will remove the applicant if they
fail to leave the UK voluntarily. In 2006 the Home Office set a target for
numbers of removals (male and female), “3,500 removals per month by April
2009.”[19]
In the third quarter of 2009, 17,055 persons were removed or departed
voluntarily from the UK, on average 5,685 per month including people who were
turned away at the border and who left voluntarily.

Exceptions

There are certain categories of applicant whose claims are
dealt with differently:

Minors: under 18 year
olds—both unaccompanied children and children from families who
apply in their own right—are accommodated by social services. Some
children may require a social services assessment to confirm their age and
until a social services age assessment has taken place, an age disputed
young person is dealt with as an adult. Once age has been determined,
their cases are processed by case owners who have been specially trained
to deal with children.[20]

Third Country Cases: under
the European “Dublin II regulation,” asylum applicants must
pursue their claims in the country they first set foot in Europe.[21]
While in the UK, these applicants are held in detention before being
removed to such country.[22]

Possible
“Non-Suspensive Appeal” cases: claims considered
“clearly unfounded” by UKBA, based on a list of countries UKBA
considers “safe”.[23]
Once their claims have been rejected, asylum seekers defined as
non-suspensive appeal cases can only appeal from outside the UK after removal. Most are kept in detention at the Oakington Immigration Removal Centre near
Cambridge until they are removed.[24]

Detained Fast Track Procedure: where it appears,
after screening, that a case is one that can be decided
“quickly”, any asylum claim, whatever the nationality or
country of origin of the claimant, may be fast-tracked. This is the
procedure examined by Human Rights Watch in this report.

Detention

According to Phil Woolas, UK Minister for Borders and
Immigration, speaking in parliament in June 2008:

Detention is an essential part of the Government’s
commitment to operate a “firm but fair” immigration and asylum
policy by assisting us to remove those who do not qualify for leave to remain
here and who refuse to leave the UK voluntarily or who would otherwise abscond.[25]

The power to detain immigrants was
first included in the Immigration Act 1971, which allowed the detention of
asylum seekers in detention centers or prisons.[26]
Immigration officers, acting on behalf of the Secretary of State, were granted
the power to detain asylum seekers at any stage of the asylum procedure.[27]
Several immigration acts subsequently affirmed and elaborated on the use of
immigration detention, including the detention of fast track cases.[28]
Non-statutory guidance notes, such as the UK Border Agency Instruction and
Guidance on Detention and Temporary Release, further developed these powers.[29]
There is no statutory limit on the length of detention of immigrants in the UK in any of these acts.

In May 2008 UKBA announced a large-scale expansion of immigration
removal centers, including a new center to process detained fast track cases,
increasing capacity by up to 60 percent, adding that “[a] new centre will
allow even more fast track cases to be heard.”[30]
In March 2009 the newest center was opened, providing capacity to hold an
additional 426 male detainees, leading to a total of eleven immigration removal
centers providing 3,000 beds for people throughout the asylum system, including
for persons routed into the detained fast track procedure.[31]

Women Seeking Asylum in
the UK

In 2008, 7,390 women
applied for asylum as principal applicants—approximately 30 percent of
all principal applicants. That same year 2,875 women applied as dependents of
other family members—about 54 percent of all dependent applicants.[32]

In 2008, 31 percent of female principal
applicants were granted asylum or discretionary leave at first instance by the
Home Office.[33]
There is no gender segregated data available for the appeal stage, but 23
percent of appeals by both men and women against refusal of refugee status were
successful in 2008.[34]
The figures appear to have remained similar in the first half 2009 (the latest figures
available at time of writing), with 29 percent of all asylum applications
decided in the UK granted asylum at the initial stage.[35]

Grounds and Gender

A woman who needs protection and recognition as a refugee
must establish under the Refugee Convention that she has a well-founded fear of
being persecuted for reasons of race, religion, nationality, political opinion,
or membership of a particular social group in her country of nationality.[36]
Gender is not an explicit ground for asylum under the Refugee Convention, but it
is an established principle that the definition of ‘refugee’ should
be interpreted to include the gender dimensions of persecution in order to
accurately determine claims to refugee status. The UN High Commissioner for
Refugees (UNHCR) Guidelines on International Protection make clear assessment
of grounds should include the gender dimension of persecution.[37]

The fact that gender is not specifically a ground under the
Refugee Convention renders many women’s cases by definition technically
complex. Women may experience persecution differently from men and be exposed
to different forms of it. Assessing the implications and consequences of gender
therefore requires additional information about the threats and forms of
persecution experienced by a woman in her country of nationality. Furthermore, many
women claim to be subject to persecution and forms of harm not directly
inflicted by the state,[38]
and for which they should—but frequently do not—receive adequate or
any state protection.

There is currently no publicly available official breakdown
of the reasons why women seek asylum in the UK, but organizations and
solicitors working with women report issues behind claims to include trafficking
for sexual or labor exploitation, forced marriage, violence within the family,
forced sterilization, and sexual violence. Women have also claimed persecution
based on gender-specific cultural practices such as female genital mutilation
(FGM) and the threat of “honor” killings.[39]

Organizations that provide services to refugee women have
estimated that more than half of all women seeking asylum in the UK are victims
of sexual violence, and some have estimated that figure to be as high as 80
percent.[40]
There is a particular stigma attached to rape and some survivors may experience
overwhelming feelings of self-loathing and embarrassment. While victims of
other crimes may anticipate and receive care and sympathy from loved ones, many
rape survivors fear they will not be believed even by those closest to them. They
may be met with hostile, even violent responses.[41] Indeed,
those closest to a rape survivor may be responsible for the abuse in the first
place. For these reasons, UNHCR recommends that “in procedures for the
determination of refugee status, asylum seekers who may have suffered sexual
violence be treated with particular sensitivity.”[42]

The UKBA published an Asylum Policy Instruction on Gender
Issues in Asylum Claims (gender guidelines) in 2004, revised in 2006, which
sought to improve the gender sensitivity of the UK asylum process at first
instance.[43]
This is a comprehensive document with several important safeguards for women in
the asylum process, including a confirmation that “Although gender is not
listed as a convention reason under the 1951 Convention decision-makers should
be aware of gender issues in their assessment of asylum claims.”[44]
The gender guidelines also include an explanation of many of the forms of
persecution and violence that women might go through and base their asylum
claim on.[45]

However, despite these UKBA gender guidelines, Human Rights
Watch and others’ evidence points to a regular failure by UKBA decision
makers to take women’s experiences into account when interpreting refugee
law and when deciding on return.[46]
A 2006 study found a lack of implementation of the gender guidelines, stating
that while a few good examples were found, the overwhelming impression was one
of a lack of awareness of gender issues and that the UKBA’s own guidance was
not being followed by decision-makers.[47]

There is also a gap at the level of judges, who do not have gender-focused
guidelines. The UK’s Immigration Appellate Authority, the forerunner of
today’s Asylum and Immigration Tribunal (AIT), initially developed gender
guidelines for immigration judges ruling on appeals and judicial reviews in
asylum cases. These seemed to be taken over by the new AIT. However, in
September 2006 the AIT announced that the Gender Guidelines for Immigration
Judges had been removed from the AIT website stating, “The Gender
Guidelines are not, and have never been, the policy of the AIT and they have no
AIT approval.”[48]

There are no statistics that break down the grounds for
claiming asylum in the UK, but in the experience of solicitors most claims for
asylum by women in the UK are based on “membership of a particular social
group” or “political opinion” as defined in the Refugee
Convention.[49]

Social group

“Membership of a particular social group,” as a
ground for asylum, cannot be defined by the persecution suffered by an
individual; the group must exist independently of the persecution.[50]
Someone whose claim is based on torture because of political belief must show
proof of their political background and activity, such as membership of a
political party, as well as proving that they were persecuted or tortured.

For women who are subject to domestic violence or rape, the
claim requires more evidence: it is necessary to prove that the rape or
violence occurred, that they remain at risk, that the state does not offer them
sufficient protection, and that they are members of a particular social group
in their society. In these cases, membership of a particular social group will
require careful consideration of the particular circumstances of women as a
group, or a subset of certain women, in the country of origin. This will
usually be established in each individual case.[51]

However, specific subgroups of women in
particular countries are sometimes established as a social group. For example, in
the case of Shah and Islam v. SSHD the House of Lords concluded
that women in Pakistan who were victims of domestic violence constituted a
particular social group. The reasoning was that these particular women formed a
distinct group in society as evidenced by widespread discrimination against
them, for which the state did not offer adequate protection as they were not
seen as entitled to the same human rights as men.[52]
In another example, in 2006 a House of Lords ruling found that women who have
not undergone female genital mutilation in Sierra Leone were a particular
social group because they are perceived by society as inferior.[53]

Political opinion

To accurately consider claims on the ground of persecution
because of “political opinion”, caseworkers have to take into
account that women, while certainly not always, may participate differently
from men in political activities. Women’s contributions, such as cooking
for the group or hiding rebels, are harder to prove than actual membership of a
political group. It is particularly challenging for a woman to prove she was
raped because of her political opinion, a ground under the Refugee Convention,
because that requires evidence of intent. The ground of “political
opinion” is often unsuccessful for women because UKBA case owners assume
that women’s political participation would not be seen as important, or
significant enough to be persecuted by the police in their home country.[54]
This is contrary to the UKBA’s own gender guidelines which explicitly
counter this assumption stating:

Decision-makers should beware of equating so-called
"low-level" political activity with low risk. The response of the
state to such activity may be disproportionately persecutory because of the
involvement of a section of society, namely women, where because of their gender
it is considered inappropriate for them to be involved at all.[55]

IV. The Detained Fast
Track Procedure

Fast
Track is just a factory for sending people away... I am so scared.

— Aabida M., Yarl’s Wood immigration removal
center, June 17, 2009

The Development of the Detained
Fast Track Procedure (DFT)

Detained Fast Track (DFT) is one of the key elements of the
New Asylum Model (NAM) facilitating faster decision making on asylum cases.[56]
When the Labour government came to power in the late 1990s, it stated that it
intended to address the then high number of asylum applications (it has gone
down significantly over the past decade) and the consequent backlog of cases in
the UK.[57]

In March 2000, the then Minister of State for the Home
Office, Barbara Roche, announced the creation of an accelerated procedure for
men including detention to be implemented at the reception center at Oakington
near Cambridge.[58]
This was seen as a flagship scheme to help deal with the applications backlog
and to facilitate faster and a greater number of removals.

This was the first time in the UK that asylum seekers were to be placed in detention with administrative convenience as
the objective.[59]
Prior to this, anyone claiming asylum in the UK was required to report to a
center at a given time and their claim would be handled without
detention—only those asylum seekers who were rejected and about to be
removed were detained.

The new accelerated procedure was intended to facilitate an
asylum decision as fast as possible. For that to be achieved, it was considered
necessary to ensure that applicants would be readily available for every part
of the process, without the risk of them absconding, “otherwise claimants
would likely be unwilling to comply with asylum procedures.”[60]
Initially limited to Oakington, the original rationale was to have a relaxed
regime of minimum physical security, only applicable to single males, with on
site legal representation, and a maximum of seven days in detention.[61]
If a claim was refused, the appeal would take place outside the fast track
timetable and would not involve detention.[62] While the UK Home
Office has not been completely clear about why the procedure was initially only
for single males, it would appear that their flight risk was considered greater
or that their cases were more often considered unsubstantiated.[63]

Since March 2000 the rules have changed on several occasions.
Most changes have chipped away at the ability of asylum seekers to present a
claim supported by evidence, thereby further eroding the right to a full and
fair asylum determination process.

The first version of the fast track procedure was challenged
in the Saadi v. UK case in 2001 and 2002, which went all the way to the
Grand Chamber of the European Court of Human Rights.[64]
Mr. Saadi, along with several fellow Iraqi asylum seekers, claimed that his seven
day detention for fast track processing violated Article 5 of the European
Convention on Human Rights.[65]
In 2001 the UK Court of Appeal ruled that detention was not unlawful and this
decision was upheld in 2002 by the Law Lords.[66] The European Court
ruled that as long as the detention took place in reasonable conditions and its
length was not excessive, it was proportionate—and that the detention of
seven days was not a violation of Article 5.[67]

In March 2003, the then Minister for immigration and Counter
Terrorism, Beverley Hughes, used this approval of the use of detention by the
courts to introduce a variant of the accelerated procedure that brought the
appeals process into the fast track procedure for the first time. In other
words, in some cases appeals against the rejection of an asylum claim were now
to take place within an accelerated timeframe and while the asylum seeker was
in detention.[68]
The Home Office claimed this was justified because it was limited to
“single male applicants from countries which are believed by the [Home
Office] to be those where in general there is no serious risk of
persecution.”[69]

In April 2003 the Harmondsworth Immigration Removal Centre
near London Heathrow Airport became the location for the implementation of this
new fast track procedure.

Up until 2004 there was no procedure in place for re-routing
a claim back into the standard asylum procedure should it become obvious that
an error had been made in the original routing. However, in 2004 the Court of
Appeal ordered the Home Office to adopt a flexibility policythat
allows case owners to remove cases from the detained fast track, following a
legal challenge by the Refugee Legal Centre (now Refugee and Migrant Justice).[70]

The Home Office’s five-year
(2005-2010) strategy for immigration stipulated that the detained fast track
would be increasingly used and that women would also be brought into it:

We will expand the detention capacity we have for those
whose claims are considered under our current fast track processes, for those
suitable for a quick decision. We will open a new detention facility for single
females linked to the fast track process.[71]

Then in May 2005 the government announced that the
Yarl’s Wood Immigration Removal Centre near Bedford was to be used to
detain and process women in the fast track procedure. Yarl’s Wood has a
capacity for 284 single women and 121 bedspace for families (not going through
DFT.) Since that time, women in the DFT procedure remain in detention
throughout the asylum application and appeal process until they are removed,
granted status, or transferred back into the standard asylum procedure.

The 2005 Five Year Strategy included a projection to
increase the numbers of asylum seekers going through the accelerated procedure,
including women: “we project that up to 30 percent of new asylum
applicants will be put through a fast track detained process.”[72]

The UK Border Agency has as a target under their
“public service agreement” that by the end of 2011, the UKBA will
conclude 90 percent of new asylum claims within six months from application.[73]
In 2008, roughly 61 percent of cases in the asylum system were concluded within
six months.[74]
The fast tracking of cases is an important part of the strategy to achieve the
six-month target. Performance against this indicator will be reported to the
Border and Immigration Agency Board, which is charged with intervening with
UKBA should performance not reach the target.[75] As the
Medical Foundation for the Care of Victims of Torture put it to Human Rights
Watch, “The pressure to meet case conclusion targets may be driving an
ever stronger reliance on the DFT.”[76]

The DFT Procedure

As described above, the screening interview—at which
no substantive questions are asked—determines whether a woman is routed
through the standard asylum procedure or whether she is placed in detention
straight away under the fast track procedure. If a woman asylum applicant is
identified as suitable for the Detained Fast Track procedure, she is
immediately placed in Yarl’s Wood. Her asylum interview with a UKBA case
owner usually takes place a day after arrival, as opposed to eight to twelve
days after the claim is lodged in the standard procedure.

The decision will usually be served on
the applicant about two days after the asylum interview, as opposed to 30 days
after the claim in the standard procedure. She has two days in which to lodge
an appeal, and there will be a maximum of 11 days before an appeal is heard, as
opposed to one to three months within the standard procedure.[77]
This makes the total period of time for a case to be heard from start to the
appeal stage about two weeks.

Similar to the regular asylum procedure, the applicant can
ask for a reconsideration of their appeal[78] or
take the matter to the High Court and ask for a judicial review.[79]

Table 2 gives an overview of the steps in this procedure.

Guidance on Who Should
be placed into Fast Track

In 2007 the Home Office issued a guidance note for those who
work on fast track case processing, which included a list of 56 countries
deemed to be suitable for the procedure.[80] A list of
“safe countries” would not provide an accurate picture of the persecution
of women where governments are not themselves the perpetrators of abuse, but
where they nevertheless consistently fail to protect women against private
abuse. There were countries on the list from which asylum seekers were deemed
“likely to be” suitable for fast tracking that do not have laws in
place to protect women from various forms of violence, and where laws that are
in place are not implemented.[81]

A striking example is Afghanistan, which was on the list,
and which has failed to protect women who have been and still are denied basic
rights either by official government decree or by their own husbands, fathers,
and brothers. Most recently, in August 2009 Afghanistan adopted a law which,
among other things, gives a husband the right to withdraw basic maintenance
from his wife, including food, if she refuses to obey his sexual demands.[82]

The country list was dropped from the guidance note in the
summer of 2008. However, there remains concern among practitioners that the
list is actually still in informal use. It contained countries such as Pakistan,
Sierra Leone, China, Nigeria, Jamaica, Uganda, and Kenya that even now are
among the countries of origin from which applicants are most commonly put into
DFT (see table 1 below).[83]

The changes to the guidance note in 2008 included the
important amendment that any claim is suitable for fast track when it can be
decided “quickly”. The 2008 guidance note also includes a
list of exceptions which are considered unsuitable for the DFT procedure.[84]
These include women who are more than 24 weeks pregnant, unaccompanied children
seeking asylum, “whose claimed date of birth is accepted by the UK Border
Agency,” and those requiring 24 hour nursing or care.

Another exception is those for whom
there is independent evidence of trafficking or torture. The corollary of this
is that victims of torture and trafficking who do not have evidence with them
when they apply for asylum, including expert reports and medical reports, may
end up being placed into the Detained Fast Track procedure.[85]

According to the DFT intake instructions, any assessment of
whether a quick decision is possible must be made in light of all of the facts
of the case.[86]
Cases where a quick decision may not be possible may include, but are not
limited to:

Cases where it is foreseeable
that further inquiries (whether by the UK Border Agency or the applicant)
are necessary, without which a fair and sustainable decision could not be
made;

Cases where it is foreseeable that translations are
required in respect of documents presented by an applicant.[87]

While this appears reasonable, the assessment of case
suitability for DFT is carried out at a screening interview where no
substantive questions about the facts supporting the claim are asked.

Once the UKBA officer conducting the screening interview is
satisfied that the claimant is suitable for the fast track procedure, he or she
will contact the Asylum Intake Unit (AIU) at Yarl’s Wood and fax the
screening interview record to AIU. The intake unit then checks the suitability
criteria. As noted in the intake instructions, “detention space is
limited, and so detention resources must be used carefully to achieve the best
outcome.”[88]
Practical considerations appear to include whether there are any beds available
in the removal center at the time of the claim and whether women can be
relatively easily removed, for example whether they have valid travel
documents.

Origins of women put into DFT

Publicly available UKBA statistics on countries of origin of
asylum applicants are not disaggregated by gender for all asylum seekers, so it
is not possible to identify from where women have come across all applications.
However, information is available on the top fifteen countries of origin of
women put into the DFT procedure in 2007 and 2008.

Table 1: Countries
of origin of women placed into DFT 2007 and 2008 in order of numbers

Many of these countries have seriously flawed records when
it comes to women’s rights. Some such as the Democratic Republic of Congo
have well documented and severe problems with sexual violence during conflict.[91]
Others, such as Iran and Pakistan, have laws that profoundly discriminate
against women and provide limited protection from harmful traditional practices
and other forms of violence.[92]
Others still are countries of origin for trafficking for sexual exploitation
and other forms of slavery to the UK, such as Nigeria and Uganda.[93]

Table 2: Overview of the Detained Fast Track procedure

V. Failure to Protect—the Pitfalls of the DFT System for Women

The
worst thing is that after all the suffering, the trauma, the detention in my
home country, the pain, and finally the escape, I come for safety, but was put
in detention like a criminal. I am not a criminal, criminals did things to me.
— Alicia B., a torture and rape survivor from Cameroon, June 8, 2009.

Speedier decision making must be balanced against the UK’s obligations under international human rights and refugee law.[94]
States are entitled to control their borders, but they are obligated to ensure
that individuals in need of international protection have access to fair
refugee status determination procedures. In other words, asylum seekers have a
fundamental right to a full and fair consideration of their claims.[95]

Liam Byrne MP, then Minister of State
for Borders and Immigration, wrote in 2007: “The DFT has a focus on high
quality decision-making, with access to high quality legal advice through a
panel of duty solicitors.”[96]
Unfortunately however, in its quest to rapidly process certain asylum
applications, the UK has sacrificed fairness for supposed efficiency. Human
Rights Watch’s research suggests that the safeguards that are in place to
prevent the detention of vulnerable persons and to grant protection to those
who need it are neither sufficient nor are being properly followed. As a
result, women’s human rights to protection and nonrefoulement (which prohibits
the UK from returning refugees to countries where they have a well-founded fear
of persecution) are at risk of being violated.

Since the DFT procedure for women was introduced in 2005,
2,055 women have been routed into it.[97]
The percentage of claimants recognized as refugees in the fast track system is
drastically lower than those whose applications are processed through the
standard asylum procedure (where most are also rejected.) In the DFT procedure
in 2008, four percent of the 515 women held in Yarl’s Wood in 2008 were
granted asylum in first instance. Only nine percent of those who appealed were
successful.[98]
In the first quarter of 2009, three percent of claimants at Yarl’s Wood
were recognized as refugees at first instance.[99]

Around 26 percent of the women in the Detained Fast Track
procedure were taken out of the procedure (and detention) in 2008 and routed
into the standard asylum procedure.[100]
While there are no publicly available records of why cases are taken out of
fast track, the figures suggest that in 2008 about one quarter of cases were
judged to have been wrongfully screened and inappropriately placed into DFT.
According to UKBA, this reassessment is usually done by the caseworker after
the initial asylum interview if they consider the claim to be too complex or
the claimant not suitable for detention.[101]

The high refusal rates and the fact that a quarter of women
in DFT are routed back into the standard asylum procedure are interpreted
differently by the Home Office and by legal practitioners and NGOs. The Home
Office claims that the statistics show the fast track system is working.[102]
It claims that “the fact the AIT [Asylum and Immigration Tribunal]
generally up-holds the initial decision does indicate that the case owner had
made the correct decision in the first instance”.[103] According
to the UKBA, the fact that case owners are identifying cases to be taken out of
fast track means that the safeguards against incorrect processing of claims are
working.[104]

UNHCR, NGOs working with persons passing through the DFT
system and solicitors providing legal representation have a different view. Solicitors
and NGOs, for example, claim that women are taken out of fast track because of
action by a solicitor and a gathering of evidence by NGOs rather than proactive
reassessment by caseworkers.[105]
UNHCR has expressed concern that structural features of DFT may affect quality
of decisions:

Whilst noting some examples of good practice, the findings
from the QI [Quality Initiative] audit indicate that DFT decisions often fail
to engage with the individual merits of the claim. Decisions made within the
DFT often incorrectly apply and inaccurately engage with refugee law concepts
and adopt an erroneous structural approach to asylum decision making. UNHCR is
concerned that the speed of the DFT process may inhibit the ability of case
owners to produce quality decisions.[106]

Human Rights Watch’s research encountered a lack of
serious investigation of claims at the initial asylum decision stage as well as
to some extent at appeal. Our view is that there are sufficient flaws within
the system to mean that high refusal rates are likely to be a consequence of
the speed and structure of the process and weaknesses of gender awareness impacting
on applicants being able to make claims effectively, as well as the low merit
of some cases.

Others also claim that the numbers refusals do not
illustrate the success of the procedure but simply show how easily asylum
seekers are refused in DFT. One solicitor who works on fast-tracked cases
described it as follows:

I have seen many cases [in DFT] where the woman’s
story was simply ignored and dismissed because the Home Office did not believe
her, based on assumptions. The figures show a lack of interest in these women,
not a successful asylum system.[107]

Speed and quality of decision making, especially in the
complex field of refugee law and protection, are rarely a matching pair. As
said by the Council of Europe’s Commissioner for Human Rights,
“Accelerated procedures that may lead to a reduction in quality of
examination of asylum claims and of decision-making may not be regarded as
efficient.”[108]

Accelerated procedures should only be
applied to cases within the scope of UNHCR’s EXCOM Conclusion No. 30
which are “clearly abusive” or “manifestly unfounded”,
and preferably not in detention.[109]
The Council of Europe’s Parliamentary Assembly recommends: “[L]imit
the use of accelerated procedures to cases which are clearly well founded (i.e.
those whose claims are quickly deemed to merit refugee status), allowing a
swift positive decision on the asylum application, or those cases which are
clearly abusive or manifestly unfounded.”[110] The
fast track procedure in the UK is being used for a far broader range of cases.

Case History: Lisa O. from Kenya

Lisa O. is
a 23-year-old woman from Kenya who lived with her grandmother in a village in
Siaya, a district in the west of Kenya. In violence following the 2007
elections, a gang terrorizing their village came to her grandmother’s
house and ordered them to leave.

Lisa says
she went to the police but did not get any help. Instead, they told her to go
to Nairobi. There, in the displacement camp where she lived, she met a man
who promised to help her get a job and a place to live. Instead he stole her
documents and possessions, imprisoned her in his house, raped her repeatedly,
and threatened to kill her if she left. He was a member of the Mungiki group[111]and made it clear that he expected her to be circumcised.

This man
decided to leave Kenya when a conflict arose between him and other group
members and he forced Lisa to go with him. He controlled the journey and her
belongings, and in May 2009 she arrived in the UK with him. He then
disappeared, leaving her destitute.

Disregarding
the complexity of her case, her application for asylum was deemed to be a
straightforward case and she was placed into the DFT. Her application was
refused at all stages, and her final request for judicial review was pending
at the time of writing (November 2009). She told Human Rights Watch:

They
didn't give me a reason, just that my case will be quick. They wrote
everything down from the interview but made many mistakes, they got my town
name wrong, my religion, and even said South Africa instead of Kenya when
they refused me. They think I didn't tell them the truth, said I should have
gone to the police [in Nairobi], but I was scared and couldn't leave [the man
I was with] ... It is so stressful to stay in detention, the fast track is so
fast, there is no time to think. I told them the truth ... I cannot think
about going back.[112]

Case History: Fatima H. from Pakistan

Fatima
H.’s story is another of the lack of protection by the state against
abuse by non-state agents.

She is a
28-year-old woman from Pakistan who says she was a victim of sustained
domestic violence by her husband, a wealthy and powerful figure in her
region. He imprisoned her in her house, abused and attacked her because she
did not become pregnant, or simply because he was in a bad mood. She was
terrified to go to the police because she was aware that her husband was
close to them.

She
eventually managed to escape with the help of an “agent” but when
she arrived in the UK, seeking protection, she was placed in the DFT
procedure. Her claim was refused because of her apparent lack of credibility
and because she “could seek gender specific protection at a women only
police station” in Pakistan.[113] However, there
are only a few of these stations in Pakistan and these lack resources and
training (see Quality and Use of Country Information below). Moreover, there
are none in the region where she comes from. Fatima was scheduled to be
removed to Pakistan and on October 5, 2009. She wrote to Human Rights
Watch just before that:

If I go
back, my husband and my family kill me. No one to collect me on airport,
and you know in Pakistan women are not secure...If there [is] in this
world a little bit of humanity or you can say human rights, please protect me
from them. If no then allow me to kill myself as a right of human who have
nothing in this world, not a little place where I live safe.[114]

Screening: Putting
Women into DFT

UKBA
policy is crystal clear: torture victims are categorically unsuitable for
inclusion in the DFT. However, in practice significant numbers of torture
victims—including many women who have survived horrendous sexual
abuse—are winding up in there. We know this because our doctors play a
key role in documenting evidence of their abuse.

— Sonya Sceats, the Medical Foundation for the Care
of Victims of Torture, February 10, 2010.

Even though technically it precedes entry into the DFT
system, the initial screening interview marks the start of procedural
weaknesses in fast-track. The screening interview takes place either when
entering the country or at the asylum screening unit in Croydon.[115]
As already indicated elsewhere in this report, the initial interview is not
intended to elicit detailed information about the validity of the claim, but to
obtain basic information about the applicant. However, it is at this
point of the process that a UKBA officer takes a decision on how an asylum
claim will be processed, including whether a claim is suitable for the detained
fast track procedure.

As the Immigration Law Practitioners’ Association has stated,
“it is a mystery of the fast track process how the straightforwardness of
claims can be accurately assessed when the screening interview elicits no or
virtually no information about the substance of the claim.”[116]
In truly Kafkaesque fashion, the information needed to assess suitability of a
case for fast track is only available at the asylum interview, which takes
place after the woman is already in the DFT procedure.

If an asylum seeker does not immediately provide testimony
or evidence to support her claim, she can be placed into detention without the
full extent of her claim being known. Yet she is not asked to provide this
evidence. In cases that require material evidence such as doctor’s
reports or expert testimony, most refugees are not able to gather such
information before they arrive in the UK (and putting her into detention makes
gathering such evidence more difficult, see below.) UNHCR has stated that,
“Often ... an applicant may not be able to support his statements by
documentary or other proof, and cases in which an applicant can provide
evidence of all his statements will be the exception rather than the rule.”[117]

Human Rights Watch encountered cases that could and should
have been identified as complex at the screening interview, but that were still
placed into fast track. In these cases, UKBA ignored their own Gender
Guidelines as well as their intake instructions. Our research suggests that the
assessment of whether a case can be decided quickly is often simplistic and
ineffective in identifying specific gender-related cases that do not belong in DFT.
The referral mechanism is not robust enough to ensure complex cases are kept
out.[118]

Omar B. is a transgender person (female to male, not
biologically male) from Pakistan, who was placed into the DFT and eventually
spent four-and-a-half months in detention.[119] At the screening
interview at the asylum screening center in Croydon, he identified himself as a
lesbian because his appointed solicitor told him that was what “was wrong
with him”.[120]
A medical examination concluded that he was female. Omar told Human Rights
Watch: “I had no idea what was happening in my body, all I knew was that
I was in love with a girl and that I felt like a boy and man my whole
life”.[121]

Disregarding his confused sexual identity, the threat of the
father of his girlfriend to kill him, as well as the fact that he had already
been severely assaulted by the father and abandoned by his own family, his case
was deemed straightforward and suitable for fast track.[122]
That this was an inappropriate referral as well as, subsequently, an incorrect
refusal of his asylum claim was confirmed by the High Court in August 2009 in a
judicial review of the case. Judge Mark Ockelton indicated that he had
"real difficulty" in understanding why the Home Office immigration
authorities were still defending their decisions to refer Omar’s case to
fast track and to refuse the asylum claim, despite "strong evidence"
in the asylum seeker’s favor.[123]
A fresh claim was made and he was eventually granted asylum in August 2009.

Laura A. from Sierra Leone said she experienced serious
gender-related abuses in combination with severely traumatizing events,
including witnessing her father’s beheading, being raped several times,
being imprisoned, being forced to have an abortion by having her stomach
cut open, and being trafficked into the UK.[124] None of these
issues were identified during the screening interview, and she was placed into
fast track. Laura A. told us “the screening officer at the center in Liverpool was aggressive and said ‘why do you come to this country that doesn’t
want you?’ and I was told I was a liar.”[125]
In this instance, after significant interventions by NGOs the case owner
recognized that Laura was incorrectly in DFT and transferred her out of fast
track. Eventually she was given refugee status.

One of the situations where an officer is clearly required by
the DFT intake instructions to consider the claimant’s case in the
general procedure is when it is foreseeable that translations are required in
respect of documents presented by an applicant.[126]
Even this requirement is not always adhered to in practice.

Aabida M. claimed asylum based on a threat by her family in Algeria after they found out about her relationship with a man who was not her husband.[127]
Her sister sent her a letter in Arabic telling her that she should not come
back as her family would hurt or kill her.[128] She showed this
letter to officials as soon as she claimed asylum in Croydon. The officer told
her to “leave the letter for now” but to show it at her asylum
interview.

At her asylum interview at Yarl’s Wood, she again
presented the letter and was told they could not accept it because it was in
Arabic. When she subsequently referred to the letter at her appeal hearing, the
judge said she should have presented it at her interviews. Aabida wrote about
this to her caseworker: “I told about my letter first time, not the last
minute as you said in court.”[129]
Human Rights Watch is in possession of several requests by Aabida M. requesting
a translation of this crucial letter, but at no stage was the process adjourned
to allow it to be translated.[130]
She stated that, “Fast track is just a factory for sending people away ...
I think I did everything right, even without lawyer, but they do not care ... I
am so scared”.[131]
Aabida is certain her family will find her and harm her if she is forced to
return to Algeria. The morning after Aabida M. told us this, she was taken out
of Yarl’s Wood to an airport and put on a flight to Algeria. Human Rights Watch has not been able to contact her since she was deported.

The UK has recently ratified the Council of Europe Convention
against Trafficking in Human Beings.[132] The then Home
Secretary Jacqui Smith stated on the day of ratification: “Ratifying this
convention helps us [to turn] the tables on traffickers and providing victims
with protection, support and a voice in the criminal justice system.”[133]
Yet trafficked women are still frequently found among those in the Detained
Fast Track procedure. The Poppy Project, an organization that provides expert
evidence and housing for women who have been trafficked into prostitution,
manages to get some women who have been sex trafficked removed from the fast
track system, but no specific organization is funded to provide evidence on
behalf of victims of other forms of trafficking, such as for domestic work or
forced labor.

In May 2009 the House of Commons Home Affairs Committee
raised its own concerns about women who are trafficked and the negative
consequences of ending up in the fast track system:

We are concerned that the Government's laudable aims of
deterring fraudulent applications for asylum and speeding up the decision processes
for genuine asylum seekers may disadvantage the often severely traumatised
victims of trafficking.... Removing people from the Fast Track does not mean
that their cases would be examined less rigorously; it just means that there
would be more time in which evidence of trafficking might be adduced.[134]

Xiuxiu L., a 27-year-old woman from China, said she was trafficked into the UK and immediately claimed asylum upon arrival, but could
not provide evidence of her abuse and trafficking.[135]
When Xiuxiu L. was 17, she said, she was arrested because her father was
accused of selling drugs. She was held at a police station for a week, and then
handed to a man she didn't know. She was taken to a bar and told to have sex
with customers. She was held as a sex slave and when she refused to have sex,
she was severely beaten. She was sold to three other bars over a period of five
years. Finally, she befriended a customer who saw her bruises and managed to
“help” her escape. He brought her to an airport and gave her a
Chinese passport. She left China and travelled for 16 months, always
accompanied by different people. Upon arrival in London she claimed asylum. She
barely spoke English and was placed into detained fast track because her claim
of trafficking and being held as a sex slave were not believed without
documentation.[136]

Sensitivity to gender-related issues is important in
identifying vulnerable cases and keeping complex gender-related claims out of
the DFT, and must therefore be integrated into any intake criteria. This
sensitivity is sometimes flagrantly absent. As one NGO explained to Human
Rights Watch:

The decision to detain is made before the state knows
whether the woman was a victim of sexual violence, because those questions
aren’t asked. So the woman has to present on her own initiative expert
evidence that she has been tortured or abused, which of course she isn’t
able to do most of the time.[137]

Fanita M. from Cameroon claims she left the country because
she had lost a daughter to an infection after the child underwent female
genital mutilation (FGM), at the insistence of Fanita M.’s husband[138].
She desperately wanted to protect her youngest daughter from the same fate and
so she fled from Cameroon with the child. She was placed into fast track
because she was educated and was therefore seen as able to move to another part
of Cameroon, find work and provide for herself and her daughter. Her husband,
however, works for the police and so would be easily able to locate her should
she return to Cameroon.

She was eventually granted asylum after appeal, but she was
initially considered a quick refusal case. The difficulties she would face as a
single woman living apart from her husband having refused to allow her daughter
to undergo FGM appear to have been completely disregarded. Fanita M. spent more
than a month in detention with her young daughter.[139]
Her solicitor said that in her experience:

[W]hen women are not verbal they are considered liars and
not granted asylum. When they are educated and verbal they should be able to
live by themselves no matter what the circumstances, and are also refused
asylum initially.[140]

Solicitors and other practitioners told Human Rights Watch
that it is not at all clear what the criteria for placing someone into the
Detained Fast Track procedure actually are. The referral form only gives
“case can be decided quickly” as a reason. The most commonly used
reasons according to solicitors (who hear this from clients or from immigration
officers) are the perceived lack of credibility of the person, whether bed
space is available at immigration detention centers, the country of origin, and
whether the officer thinks the claimant could safely relocate somewhere else in
her country of origin (in other words, persecution can be avoided by exercising
the so-called “internal flight alternative”).[141]

The fact of the matter is, as UNHCR has reported to the
government, that many unsuitable cases are being routed to the Detained Fast
Track procedure due to the lack of clear guidance as to which cases may be
“decided quickly” and are therefore suitable for an accelerated
process, combined with the lack of sufficient information to be able to assess
the complexity of a claim.[142]

UNHCR considers that the screening of asylum applicants ...
[is] often not operating effectively to identify complex claims and vulnerable
applicants. As a result, UNHCR is concerned that inappropriate cases are being
routed to and remaining within the DFT. [143]

As an NGO that works with people in the detained fast track
put it to Human Rights Watch like this:

First, a decision is taken that someone’s case is
simple, and frankly that means ‘easily refused’, before the state
knows whether there was gender based violence. Women are supposed to tell an
officer straight away, but often aren’t capable to because of shame,
fear. Then in the system, when they tell the caseworker about their experience
they are often not believed if they haven’t said this in the screening
interview. So these figures just show that women are not believed, it does not
show they do not have a valid claim.[144]

Even the Home Office’s own New Asylum Model quality
team concluded in 2006 that the fast track mechanism was not sufficiently
implementing its own gender guidelines.[145] In an
evaluation of the implementation of the gender guidelines, it concluded that:

There does ... appear to have been a problem with the
referral mechanism to the detained fast track, at least in relation to the
early identification of gender-related claims. The mechanism does not appear to
be sufficiently robust or substantive to enable it properly to identify complex
gender-related claims.[146]

So while the Home Office itself already identified problems
with referral of gender-related persecution claims four years ago, the procedure
is still routinely used to process such claims, often resulting in violations
of women’s right to a full and fair asylum procedure.

The discretion of immigration officials should be guided by
specific and precise legislation to make sure no complex cases or vulnerable
groups are routed through the fast track. The Council of Europe’s
Commissioner for Human Rights noted the failure to clarify the criteria,
stating that:

It is of concern that the criteria and details of asylum
seekers’ DFT are not contained in law (primary or secondary legislation)
but in an internal, administrative manual of immigration officers.... In
addition, the criteria under which the aforementioned manual allows
administrative detention are not characterized by precision, a fact that may
lead to an excessive use by immigration officers of their discretion to detain
asylum seekers.[147]

Assessment of
credibility

Assessment of an applicant’s credibility is, of
course, a critical part of the functioning of the entire asylum system, from
the initial screening interview onwards. UNHCR has repeatedly highlighted
concerns regarding the way in which UK decision makers assess credibility and
establish the facts in asylum claims.[148] A clear
understanding of gender and cultural differences must be built into the system.
An accurate and gender sensitive assessment of credibility is crucially
important for the determination of asylum cases. Women may react differently to
questioning than men and differently according to their cultural backgrounds.
There can be a misunderstanding of body language, such as looking away during
an interview, or a failure to make eye contact, which in some countries is
considered a sign of respect from women, rather than evasiveness. Despite
guidelines, practice falls short.

In the DFT procedure, there is little time to assess the
overall credibility of an applicant. Credibility is particularly difficult to
establish if the assessment is based on a screening interview that does not
include substantive questions. If a woman’s claim is not seriously
investigated because of an initial negative assessment of her credibility
during the screening interview, dismissing the entire claim violates her right
to a fair asylum procedure.[149]
A credibility assessment generally requires an examination of the facts and
accelerated procedures militate against this.[150]

The inability to openly discuss sexual violence is often
used to challenge the overall credibility of an applicant. This is recognized
by the Home Office itself, in its guidelines on “Gender Issues in the
Asylum Claim”, which states:

If an applicant does not immediately disclose information
relating to her claim, this should not automatically count against her. There
may be a number of reasons why a woman may be reluctant to disclose
information, for example feelings of guilt, shame, concerns about family
dishonour ... Demeanour alone is an unreliable guide to credibility.[151]

However, Human Rights Watch has come across several cases
where this provision was disregarded. Jane S. was told her accounts of being
raped and the killing of her family in Sierra Leone was not believed because
“It is not plausible that you would not remember these dates when it was
a significant date in your motivation to leave”.[152]
This was decided despite the UKBA Gender Guidelines which acknowledge that
“women who have been sexually assaulted may suffer trauma. The symptoms
of this include persistent fear ... and memory loss or distortion”.[153]

Commonly assessments of credibility are based on the view of
a caseworker or judge who has no particular expertise in assessing such cases
nor of what would constitute rational or reasonable behavior in a given
situation, including in cases dealing with gender based violence. Mesi C. from Malawi said she was raped by her uncle, but the case owner told her that her rape was
fabricated, because “it is very strange that she did not tell anyone in
her family about the rape by her uncle”.[154]
Sexual violence and rape are often taboo subjects and can bring about feelings
of shame. When perpetrated by a family member, the emotional and social
complexity can be extreme. Women who have been subjected to sexual assault may
be shunned by their community and family if they admit to this and therefore
may not disclose it.[155]
Indeed, this is recognized by UKBA in its own gender guidelines.[156]

Shame and the emotional distance women create from their
experiences have a detrimental impact on their ability to tell their story,
which demonstrates the need for immigration procedures to be sensitive to these
issues.[157]
As Laura A. told us:

I was in shock, weak, but I should have told the man who
told me I was lying, that if I would get my mother and sisters back I would
happily leave ... I loved my old life, people came to my country [Sierra Leone]
in the past you know ... I am a fighter, I am used to fight to live, but to be
told ‘you faked your life’ is a little like death.[158]

Barriers that inhibit women from telling their stories in
their own words, a hostile environment, and the tendency to regard factors such
as late disclosure, narrative inconsistency, and the lack of demonstrative
emotion while recounting traumatic events as indications of a lack of
credibility can seriously undermine women’s asylum cases.[159]

In refusal letters, references are often made to the overall
credibility of women claiming asylum, making general assumptions about their
intentions. Yuan C. is a Chinese woman who said she was beaten and abused by
her husband who also stole her passport and threatened to report her to the
police because she is a Falun Gong follower.[160] She was found in
a brothel in the UK. Because she did not immediately report to UKBA (because,
she alleges, she was forced to work as a prostitute) she was told in her
refusal letter: “It is considered that your application is an
exaggerated, opportunistic application.”[161]

The appeal ruling in relation to Fatima
H. from Pakistan, whose story was described above, focused on her credibility
and raised issues such as the cost of her taxi ride from Heathrow Airport into London. The judge did not believe her and, reasoning that “[i]mmigration
judges are appointed because of their experience of life,” suggested that
the fare should have been higher, despite the fact that he did not know to where
she was taken.[162]
The appeal judgment further reads: “The Tribunal’s view is that the
Appellant invented [her abuse] ... during the course of cross-examination to
seek to pull the wool over the eyes of the Tribunal.”[163]

Quality and use of
country information

To assess an asylum claim, UKBA caseworkers and judges
require access to sources of information on the country of origin of the
claimant to verify elements of her claim. The quality of the country
information, as well as how this information is used, is an important barometer
of how seriously asylum claims are assessed. As this information often forms
the basis of a refusal or acceptance of a woman’s claim, it must be
sensitive to women’s rights issues in countries of origin. The UKBA
officers who initially decide a claim are required to take several sources into
account to check the accuracy of the asylum seeker and to reach a conclusion
about the outcome of the claim. It is important, especially in the fast track
procedure, that the decision maker has access to accurate and up to date
information about the country of origin of the claimant.

Sources of Information

The UKBA Country of Origin Information (COI) Service
produces several products that decision makers can use. Country of Origin
Information reports are provided for the 20 countries which generate the
majority of asylum claims in the UK.[164] These reports are
summaries compiled from documents produced by a broad range of information
sources. The reports are compiled entirely from material produced by
external organizations and do not contain any UKBA opinion or policy. These
reports are usually updated three times a year.

According to UKBA “Each report focuses on the main
asylum and human rights issues in the country, but also provides background
information on geography, economy, and history.”[165]
For those countries that generate fewer asylum seekers to the UK, COI key documents are put together consisting of a brief country profile and an indexed list of other
sources caseworkers can consult for information.[166]
COI bulletins are also produced on an ad-hoc basis in response to emerging
events.[167]
Finally, the COI Service operates a rapid information request service,
providing bespoke research responses, usually within one to two working days.[168]

The body that is specifically mandated to check the content
of the COI reports, the Independent Advisory Group on Country Information
(formerly the Advisory Panel on Country Information), does not currently
examine their use by officials nor look at other documents and sources used to
refuse a claim.[169]
The actual content of COI reports has improved under the advisory group’s
scrutiny, but the use of information and additional sources remains
problematic.

There is lack of information on specific women’s
circumstances and status in their country of origin as discussed below.
Although COI reports provide sections on issues relevant to the consideration
of applications from women, most COI key documents rely upon users accessing
original source material via the indexed lists of links. Human Rights Watch’s
research encountered incorrect use of available information as well as the use
of unreliable sources, such as websites and newspapers.

Additional materials
used but not monitored

Materials that are sometimes incorrectly used as country of
origin information are “Operational Guidance Notes” (OGNs), which
are subjective and restrictive views on asylum claims from a certain country
from one of the parties in this case—UKBA. Officially:

Operational guidance notes (OGN) provide a brief summary of
the general, political and human rights situation in the country and describe
common types of claim. They aim to provide clear guidance on whether the main
types of claim are likely to justify the grant of asylum, humanitarian
protection or discretionary leave.[170]

A skeleton argument is the written summary of a legal
argument prepared by a lawyer for a case. In UK asylum and immigration cases,
skeleton arguments are given to the judge by the lawyer for the appellant and
UKBA. OGNs are effectively the skeleton arguments of UKBA.

Even though they are supposed to be “subjective”
policy documents, the OGNs are often used as “objective”
information.[171]
They should be used in conjunction with COI information. However, case owners
have used the OGNs instead of more detailed country information as the basis
for their refusal of asylum cases.[172]

This is a particular hazard in fast
tracked cases. First, because there is less time for case owners to assess a
case, there might be understandable temptation to look at the simple,
straightforward and instructive operational guidance notes.

Secondly, the top 20 countries that produce the most asylum
claims do not wholly overlap with the top 20 countries in the fast track
system. This means that for many fast track cases, there is no up-to-date COI
report and case owners have to rely upon the less user-friendly COI key
documents. For example, Kenya, Uganda, South Africa, Malawi, and Sierra Leone are countries of origin of many women in the fast track system and for which
there is no available recent COI report.

The quality of information in the narrative section of COI
key documents is often not adequate because women and users have to access
original source material via the indexed list of links. Kenya is one example of a country where Human Rights Watch believes too little information on
women’s rights is provided in the narrative section. The narrative
section of the latest COI key documents list for Kenya (April 2008) mentions
rape, but not rape by government officials, and only focuses on the adoption of
the Sexual Offenses Act, which criminalized rape, as a positive step.[173]
The Operational Guidance Note of September 2008 only addresses claims based on
fear of female genital mutilation (FGM) and concludes that the government
provides sufficient protection.[174]
It does not mention rape at all. Human Rights Watch has recently reported
incidents of rape by government forces, for example during the joint
police-military operation aimed at disarming warring militias in the Mandera
region of northeastern Kenya launched on October 25, 2008.[175]

Jamaica is an example of a country on which the UKBA’s
OGN is seriously limited, but where the COI report is more accurate when it
concerns women. The operational guidance note states “There is no
evidence that lesbians generally face serious ill-treatment in Jamaica and in the absence of evidence to the contrary may be certified as clearly
unfounded.”[176]
However, Human Rights Watch has found that women who are or are perceived to be
lesbians are at a great risk of rape, as they may be targeted for sexual
violence based on both their gender and sexual orientation. We reported a lack
of protection from the police when such violence is perpetrated by non-state
actors.[177]
Completely ignored in the OGN, this is reflected in the country of information
report.[178]
However, lesbians from Jamaica have been placed into the fast track
system.[179]

In 2009 a review by the Immigration Advisory Service of the
use of COI reports in the asylum process concluded that “Operational
Guidance Notes (OGNs), despite being policy documents, continue to be used as a
source of COI as evidenced by their citation in RFRLs [reasons for refusal
letters], against UKBA’s own guidance.”[180]

The Use of COI Information

When the Country of Origin Information reports on a certain
country includes important information relevant to the claims of women, DFT
decision makers, oddly, can come to different conclusions without sufficient analysis
of the available COI or the applicant’s particular circumstances. In 2008
UNHCR criticized this practice.[181]

One year on, Human Rights Watch documented a case where
country of origin information on protection from domestic violence in Pakistan was misquoted and wrongfully applied. In the reasons for refusal letter for Fatima
H., who was beaten and raped regularly by her husband, the case owner stated:

The objective evidence in relation to state protection for
women in Pakistan, including the availability of women police stations is clear
(Pakistan COIR: 23.54-23.63) ... it is considered that if you were to return to
your home area and experience problems, you could seek gender specific
protection at a women only police station.[182]

In fact, the latest COI report on Pakistan available to the
case owner in April 2009 stated that although the authorities had expanded the
number of women only police stations, these stations do not function adequately
due to a lack of resources and appropriate training for policewomen.[183]
It highlights the lack of shelters for women who escape domestic violence.[184]

Fatima H. told us, “[my husband] abused me over and
over again because I did not have children, my husband knows everyone ... I am
scared to death.”[185]
She was scheduled to be removed on October 5, 2009.

Information is also used selectively and sometimes
incorrectly at the appeal stage. Human Rights Watch found the use of dubious sources
of information being at both reconsideration and appeal stages. Omar B., whose
case was described earlier, went through an assessment with a consultant
psychiatrist at the Royal Hospital for Neurodisability in Putney and other
experts. The case owner who ruled on whether a fresh claim, this time on the
basis of him being transgender instead of lesbian, could be made relied on
www.freedictionary.org to determine whether in fact he is transsexual or
transgender.[186]
In the refusal letter in the same case, The Boston Globe was cited as
one of the sources to prove that lesbians are not persecuted in Pakistan, stating, “The Boston Globe reported that homosexuality is
‘tacitly accepted ... as long as it doesn't threaten traditional
marriage.’”[187]
This is a very selective quote from the actual article, in which this sentence
only refers to one region in Pakistan (where Omar is not from), the Northwest
Frontier Province, and the article commences, stating “In the Islamic
Republic of Pakistan, homosexuality is not only illegal, it is a crime
punishable by whipping, imprisonment, or even death.”[188]

Access to Legal Representation
and Expert Reports

Legal Representation

The
ability to obtain early access to good quality legal advice is of vital
importance to people seeking asylum. Where they are detained and their
application is fast-tracked, this access is even more important as they will
require advice about bail as well as their asylum application.

For women with complex cases, legal representation is
crucial to effectively pursue their asylum claims. It is the most important
practical safeguard to ensure women are not lost in the system and sent back
without an opportunity to fully argue their case. The rules governing publicly
funded legal aid and practices in the detained fast track lead to two
particular concerns, which in turn could lead to a violation of the right to
protection.

First, lack of legal representation for
women at the appeal stage due to a merits test creates a lack of equality of
arms in court since the Home Office is almost always represented. Secondly,
Human Rights Watch is concerned about reports of occasional lack of quality of
legal representation, and in almost every case the lack of time practitioners
have to prepare a case for their client.

The screening interview is conducted without legal aid or
representation since it is intended to only elicit basic information. Once in
fast track, everyone is entitled to publicly-funded legal representation during
the asylum interview at Yarl’s Wood. Some women, who obtain legal
representation through their family or friends, do not use this option, but
most make use of a legal representative on the “rota system” (the
schedule at Yarl’s Wood that lists the solicitor firms that have a
contract to work on fast track cases and that indicates which firms are
available on any given day.)

Firms have a contract with the Legal Services Commission to
provide this representation and legal assistance. Research on the quality of
legal representation by other organizations concludes that the quality of legal
representatives on the “rota” can vary significantly.
“Allocation by the Home Office to a duty representative will prove a life
line for the lucky ones, and a fig-leaf of representation for the rest.”[189]

At the appeal stage legal representation is subject to a
so-called merits test.[190]
Before legal aid is granted, the solicitor must assess whether the case has
more than a 50 percent chance of success, or find that the prospects of success
are “borderline or unclear” but of “overwhelming
importance” to the client.[191]
Since 2005 legal representatives are required by the Legal Services Commission
to win 40 percent of the asylum cases they represent at appeal if they want a
renewal of their contract, which adds pressure and may result in some cases not
receiving public funding despite the fact they pass the merits test.[192]
Aabida M., who was sent back to Algeria even though her family threatened to
kill her,[193]
tried repeatedly to get a solicitor during her case, especially at the appeal
stage when she no longer had the option of a funded legal representative
because of the merits test. She did not receive any response to her requests
(see figure 1 for a scanned request), and once she had a solicitor (through
family contacts), she was unable to contact him (figure 2 is a scanned request
to her legal representative.) She told us “I have to fight for myself
constantly, and my English not perfect. I am afraid of what judge will
do.”[194]

There are no government statistics on how many cases are
brought on appeal without legal representation, but practitioners estimate that
from one-third to over a half of all women who appeal their case in the
Detained Fast Track do so on their own.[195] Since our
research shows a lack of quality in referral and initial decisions, the appeal
stage is often the first opportunity for independent judicial consideration of
the claim, which is why legal representation at that stage is crucially
important.

Figure 2 "Can u please give me time to g[e]t
solicitor. Please my last date 23/03/09 and I still not find solicitor"
Fax sent to DFT by Aabida M. March 23, 2009.

In addition to the unavailability of legal aid as well as it’s
variable quality, solicitors who work on fast track cases told Human Rights
Watch repeatedly how difficult it is to adequately assist someone in DFT:

Our hands are tied, both in terms of funding and time. We
get a fax from the detention center and usually have to be at an interview the
next day or day after, fully prepared. And even if it were true that fast track
cases are straightforward that would already be difficult, but it is not. Women
with very complex cases still end up in fast track.[196]

To illustrate the limited time, we have included an example
of a fax from Yarl’s Wood, concerning a 29-year-old woman, Jane M. from Tanzania, who only speaks Swahili. She arrived in Yarl’s Wood on February 9, 2009 but
the fax to the solicitors’ firm was only sent on February 16. Her asylum
interview was scheduled to take place the next day at 10am. In less than a day,
the solicitor was required to prepare a full asylum claim, with translation,
brief the client, and be present at the full asylum interview.

Figure 3 Referral form from Yarl's Wood to Lawrence Lupin solicitors, sent February 16, 2009. Name of detainee blanked out.

Besides practical problems, the tight timeframe means
solicitors do not have time to build a relationship of trust with their
clients. A solicitor working on fast track cases told Human Rights Watch:

A big problem is that it is difficult to identify cases of
trafficking and sexual violence, because it takes time to build trust.[197]

Furthermore, solicitors who have already worked with a
client who is applying for asylum, but subsequently placed into DFT might not
be able to keep her as a client. As another solicitor told Human Rights Watch:

[I]f I have a client who has/is going to apply for asylum
and she is subsequently fast tracked, I cannot keep her as a client (even if my
firm does fast track work) unless I have done at least five hours work with
her. Therefore, usually the case goes to another firm and the lady was starting
to open up with me, she will have to go through the trauma of disclosing the
same story again to another representative.[198]

Human Rights Watch is concerned that the rigid deadlines in
several cases as well as the restricted nature of support for legal
representation prevent meaningful access to legal advice and representation and
thereby increases risks of refoulement.

A Good Example: The Solihull Pilot

In the
framework of the New Asylum Model (NAM) and to improve quality and efficiency
of asylum decisions, the Home Office developed the “Early Advice
Pilot” project, more commonly known as the Solihull Pilot. This project
was introduced in March 2006 by UKBA and the Legal Services Commission and
started running in October 2006 at the Solihull public inquiry office. It
allows claimants access to quality information and advice from legal representatives
from the earliest stages of the asylum process. The purpose was to improve
initial decision making and to ensure that the entire case is put forward
before the initial decision is made. Furthermore, the project’s
objective was to develop a less adversarial approach to decision making and
allow agreement to be reached about substantive points and whether further
evidence may be required. The pilot’s core is a more interactive role
for the legal representatives before, during, and after the substantive
asylum interview, prior to the first decision. Simultaneously relevant
evidence gathering is funded prior to the initial decision.

The pilot
project was evaluated in October 2008 for the UKBA and Legal Services
Commission by an independent evaluator and it concluded that it was
successful for all parties involved. The evaluation concluded that there was
unanimous agreement on the importance of having a witness statement and all
relevant evidence in front of the decision maker before the first decision on
the claim. The evaluation recommended that this procedure should become
“the normal procedure adopted for the decision making element of an
asylum claim.” Those who have a right to and need for protection get
recognized and integrated earlier, before the appeal stage. The appeal rate
dropped and those who had false claims were more inclined to drop their
claim.

Human
Rights Watch agrees that the more active role for legal representatives and a
gathering and funding of evidence before the initial decision in the DFT
procedure would greatly improve quality of initial decisions and avoid
unnecessary and expensive detention.

Expert reports

Expert evidence is an important aspect of an asylum claim,
as it may provide corroboration of key aspects of it. There are several
problems surrounding the use of and access to expert reports in DFT, including
the costs of obtaining expert evidence and the strict time frames applied.

Women who have been raped may require a medical examination
to assess the existence of injuries that would corroborate claims. The
procedure is however usually not suspended for a medical examination, a
potentially essential aspect of the case, to take place. UNHCR has stated that
“We are particularly concerned that cases which require further medical
evidence may be overlooked due to the strict timescale operating in the
DFT.”[199]

After a refusal in the first stage of the procedure,
claimants have two days to apply for an appeal. That appeal should include the
full grounds of appeal, including supportive evidence, such as witness
statements, medical evidence, and other expert reports. These expert reports
are crucial to the success of the appeal. According to one report, women with
expert reports corroborating their account of rape are six times more likely to
win their case than those without.[200]

The limited funding solicitors get for taking on fast track
cases (they get reimbursed for a maximum of eight hours per case, experts get
paid separately) has consequences for each claim and can affect whether or not
expert reports are used. As one solicitor stated, “Cases become
especially tricky when we need expert reports, which are often necessary for
women who have been raped. They [LSC] haggle over which experts are
cheaper.”[201]

Amina A. is a Somali woman from Koyaama Island off the coast of Somalia. A member of the Bajuni clan, said she had been violently
attacked and raped by members of a different clan. She told Human Rights Watch,
“My mother and I were raped and attacked many, many times, my children
crying ... I saw my mother getting slaughtered.”[202]
She has three children but she has no idea where they are. A medical report by
the Medical Foundation for the Care of Victims of Torture stated that
“[Amina A.] has numerous scars typical of or highly consistent with being
repeatedly attacked with machetes and beaten.”[203]

Amina was, however, found to be from Kenya by a language expert who interviewed her over the telephone and who appears to have
concluded she must be Kenyan because she speaks Swahili. She had not used a
phone before, she could not hear the expert properly, and she was not told who
this person was and what their qualifications were.[204]
She was set to be removed to Kenya.[205]
In fact, many Bajunis speak Swahili and she was later found by a country expert
commissioned by her solicitor to be Somali.[206] The Kenyan
authorities in the UK are not accepting her nationality is Kenyan, so she
cannot be removed for the moment. She is out on bail at the moment awaiting a
decision on her judicial review at the time of writing (February 2010).

Solicitors have expressed concern to Human Rights Watch that
they are generally unable to access funds to use experts before the appeal
stage:

With regard to gathering evidence before the appeal, this
is what we thought would happen with the new NAM system (there was a lot of
talking about “front-loading” the asylum cases). However, for both
[fast track] and non-detained asylum applicants, solicitors are generally
unable to access funds to instruct experts prior to the appeal stage, the only
exception being funds for the Medical Foundation and usually the Helen Bamber
Foundation. Anything else would have to wait until after refusal. At that point
Immigration Judges are very reluctant to grant adjournments. [This] illustrates
very well the vicious circle in which applicants are. And our frustration: the
applicant has no evidence therefore the Immigration Judge does not grant an
adjournment – The Immigration Judge does not grant the adjournment and
the applicant cannot collect the evidence.[207]

When Ayoka M. entered the UK from Nigeria, she claims she
was “helped” to enter the country by a man who exploited her
sexually, but she did not know the word “trafficking”.[208]
She says she explained the facts in her asylum interview, but only after she
was refused in first instance did it become clear that she was trafficked, when
she eventually opened up to her solicitor. Her solicitor arranged an
appointment with the Poppy Project, an organization that provides expert
evidence on behalf of women who have been trafficked into prostitution, for the
day after the appeal hearing. She also arranged for the Helen Bamber Foundation
to meet with her a few weeks after the appeal hearing (the waiting list is
usually this long). The solicitor argued that the appeal should be adjourned or
her client taken out of fast track until at least the Poppy Project appointment
had taken place. The Home Office representative agreed to have the hearing
adjourned. However, the appeal judge stated “I determined ... not to
adjourn the hearing of the appeal until a later date. I came to this conclusion
because there was no evidence ... that the appellant was indeed a victim of
trafficking” and refused the case.[209]

Besides limited access to expert advice and evidence, there
are also examples of case owners making medical judgments themselves or
interpreting medical reports without the requisite knowledge. In 2007 a case
owner, who did not appear to have any medical expertise, concluded that a
report made by the Medical Foundation for the Care of Torture Victims about a
woman who was tortured in Cameroon that, “Dr. Cohen’s findings in
this respect are somewhat limited and that insufficient alternative
explanations have been explored.”[210] He continues
“The Medical Report is not accepted to be of any substantial
diagnostic or clinical value given that Dr. Cohen is a General Practitioner
[emphasis added].”[211]
Alicia B. told Human Rights Watch, “First they didn't tell me that I
could see a doctor or the Medical Foundation and then when I can finally go,
they say they don't believe their judgment. They just did not believe me, no
matter what evidence I had.”[212]
Eventually, Alicia B won a case before the High Court to start a fresh claim
based on the errors made in this initial decision on her case and has received
refugee status in August 2009, two years after her initial application and
after six months in detention.[213]
The Medical Foundation for the Care of Victims of Torture report other cases:

Case owners regularly challenge our expert medical evidence
by substituting their own opinions on clinical matters, for example by
venturing alternative causes for scars or suggesting that the impact of an
injury could not have been as described by the asylum seeker. We spend a lot of
time referring these cases to senior UKBA officials who agree this practice is
unacceptable—they usually take action in the individual case, but clearly
stronger guidance and training is needed.[214]

Another problem raised by solicitors and women is the lack
of female caseworkers, interpreters, and doctors. One example of the lack of
female interpreters is a woman who needed a female interpreter because she had very
sensitive claims she would not be able to explain to a man and she was granted
one. The interview was delayed for that purpose for 20 days. On the date of the
interview, the woman and the solicitor walked into the office and found a male
interpreter, so they had to continue the interview with him.[215]

Detention: Necessary or
Arbitrary and Excessive?

All the challenges to a fair hearing posed by the speed and
characteristics of the DFT procedure are exacerbated by the fact of detention.

The very fact that women are told they have a
straightforward case that will be determined in a “removal center”
can in and of itself have a profound psychological impact.[216] Amina
A., the coastal Somali woman raped and attacked by clan rivals but refused
asylum on the basis she was Kenyan because she spoke Swahili, described being
detained and how it affected her: “This [detention] will kill me. This is
not life. They prefer me to die.”[217]

For Laura A. who said she was imprisoned, tortured, and
raped in Sierra Leone, detention was considered dangerously damaging to her
mental and psychological health by the head of the Helen Bamber Foundation,[218]
whom was made aware of her case and wrote a letter stating:

I am taking the unusual step of writing at this stage to
highlight my concern and my alarm that this woman has remained in the fast
track system.... [D]etention of individuals with a history of such prolonged
captivity, social deprivation, and extreme brutality likely leads to severe
re-traumatisation and can significantly impair both prognosis for the future in
terms of mental health and rehabilitative capacity and ability to give detailed
instruction and evidence.[219]

Laura A. told Human Rights Watch: “when I was taken
away by two guards to Yarl’s Wood with only the clothes I was wearing, it
reminded me of when I was taken away from my house.”[220]After this letter and other efforts by a solicitor and NGOs, Laura A. was
finally removed out of the fast track procedure and detention, and she was
granted refugee status. Alicia B. from Cameroon, who also said she was tortured
and raped, described her experience in detention: “My head exploded, I
kept on crying, my head did not work anymore. I could not eat and not
speak.”[221]

Another serious concern arises when women are rushed through
the DFT system, have their claims refused, but then remain in detention for
months because they cannot be removed. There is no statutory limit to detention
and Human Rights Watch has, in the short period of research, encountered
several cases of women who had to remain in detention for several months.
Generally, women without valid travel documents cannot be sent back to their
home country as they will not be accepted. Certain countries have been
difficult to send women back to, such as China and Zimbabwe.[222]

Detention makes the already difficult task of preparing a
case more difficult. Detention cuts someone off from the outside world and even
though a woman can communicate by phone, there are limits to who she can access
and what information she can gather. Beyond the practical difficulties, being
in detention does not create the conditions encouraging women to open up about the
often very intimate issues behind their claims. As one solicitor explained:
“Detention is just not a conducive environment for vulnerable women to
disclose that type of information [about sexual violence or trafficking], but
we need it to make their case.”[223]

The 1999 UNHCR Guidelines on detention of asylum seekers
reaffirms the general principle that asylum seekers should not be detained.
Countries may detain refugees and asylum seekers only when there are no viable
alternatives to detention and only as necessary to regularize their status or
to protect national security.[224]

The detention of asylum seekers is inherently undesirable,
in particular in the case of vulnerable groups such as single women, all trauma
survivors, and children.[225]Detention should only take place after a full consideration of all
possible alternatives, or when monitoring mechanisms have been demonstrated not
to have achieved the lawful and legitimate purpose.[226]

In its case law, the UN Human Rights Committee has held that
the failure by the immigration authorities to consider factors particular to
the individual, such as the likelihood of absconding or lack of cooperation
with the immigration authorities, and to examine the availability of other,
less intrusive means of achieving the same ends, might render the detention of
an asylum seeker arbitrary.[227]

Whether a detention is arbitrary requires consideration of
whether the reasons given by a state party make the detention appropriate,
just, proportionate, and reasonable in the circumstances.[228]
The European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), which is incorporated into UK domestic law through the 1998
Human Rights Act, allows detention of a person “to prevent his effecting
an unauthorized entry into the country,” among other reasons.[229]However, the European Court of Human Rights has clarified that such
detention is permissible only when it is not arbitrary; and that it would not
be arbitrary provided that it was “carried out in good faith,” and
“closely connected to the purpose of preventing unauthorized entry of the
person to the country,”that “the place and conditions
of detention [were] appropriate,” and that the length of the detention
did not “exceed that reasonably required for the purpose pursued.”[230]

The Joint Committee on Human Rights of the UK Parliament has
expressed its concerns about the Detained Fast Track procedure:

We are concerned that the decision to detain an asylum
seeker at the beginning of the process simply in order to consider his or her
application may be arbitrary because it is based on assumptions about the
safety or otherwise of the country from which the asylum seeker has come.[231]

The HRC has also commented on the length of detention.
Referring to a Swiss Act that allows for detention for up to one year, the
Committee states that it “notes that these time-limits are considerably
in excess of what is necessary, particularly in the case of detention pending
expulsion.”[232]

The Crossroads Women Centre summarized to Human Rights Watch
the consequences of DFT for the women they help:

A woman will arrive in the UK, often having paid someone to
help her escape, many times not even knowing which country she has arrived in,
sometimes not being able to speak English. On claiming asylum, if her case is
deemed “straightforward”, she’ll be put on the fast track and
straight into detention. She may still be suffering physical injuries as a
result of the violence she suffered. She has left everyone and everything she
knew and loved, and is suffering the traumatic impact of rape and other
violence but is denied care and support. She faces the additional burden of
sexism in making a claim; the rape and other torture she suffers is downgraded
or not taken seriously because of a perceived lack of credibility.

The Home Office has institutionalized a procedure
which systematically denies her the time to get the thorough and committed
legal representation, specialist support, medical or country evidence needed to
corroborate her asylum claim. This is especially unjust as the UK has made it a clear political priority to refuse as many applications as possible.[233]

Human Rights Watch’s conclusion is that the
complexities of many women’s asylum claims, the challenges the DFT poses
to the preparation and proper presentation of viable claims, the poor
gender-sensitivity in the way the system is implemented and the consequently
overbroad use of DFT, leads to violations of women asylum seekers’ rights
to a full and fair asylum determination procedure.

The UK’s Obligation
to Ensure the Right to Asylum

We
get it right in most cases.

— David Jull, Deputy Director of the Detained Fast
Track and Third Country Unit of UKBA.[234]

The UK is a state party to the 1951 Refugee Convention and
its 1967 Protocol (Refugee Convention).[235] As party to the
framework of international legal protections for refugees, it may not punish
refugees fleeing from persecution. The Universal Declaration of Human Rights
declares that “everyone” has the fundamental right “to seek
and to enjoy in other countries asylum from persecution.”[236]

Instruments protecting human rights generally apply to all
persons within a state’s jurisdiction.[237]

The cornerstone principle of refugee law prohibits the UK from returning refugees to countries where they have a well-founded fear of persecution
(“refoulement”) or to third countries that might not respect that
prohibition. A similar requirement on states is imposed by the Convention
Against Torture (CAT) and the International Covenant on Civil and Political
Rights (ICCPR).

The legal prohibition against refoulement is not limited in
application to formally recognized refugees, but applies to all persons who are
outside their own country and unwilling or unable to return due to a
well-founded fear of persecution, and to all persons who would face a
substantial risk of torture or cruel, inhuman or degrading treatment on return.[238]

Article 3 of the European Convention on Human Rights (ECHR)
prohibits “torture or inhuman or degrading treatment.” The European
Court of Human Rights jurisprudence is clear that this provision carries a
nonrefoulement obligation not to expose an individual to a “real
risk” of that treatment.[239]
The prohibition against refoulement under Article 3 of the ECHR is broader than
that of the Refugee Convention and includes a duty to consider the risk of
abuse by non-state actors.[240]
Claims of asylum seekers must be assessed in light of the UK’s obligations under both instruments not to return any person to a country where they could
be at risk of torture or serious ill-treatment, which includes lack of state
protection from such treatment by other parties.

The UN Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment has recognized that rape can constitute
torture.[241]
The International Criminal Tribunal for the former Yugoslavia (ICTY) in the Furundzija
case noted that "[i]n certain circumstances rape can amount to torture and
has been found by international judicial bodies to constitute a violation of
the norm prohibiting torture.”[242] The International
Criminal Tribunal for Rwanda (ICTR) in the Akayesu case stated that:

Like torture, rape is used for such purposes as
intimidation, degradation, humiliation, discrimination, punishment, control or
destruction of a person. Like torture, rape is a violation of personal dignity,
and rape in fact constitutes torture when it is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.[243]

Most recently, the Rome Statute of the International
Criminal Court (ICC) specifies that acts of rape, sexual slavery, enforced
prostitution, forced pregnancy, forced sterilization, or any other form of
sexual violence of comparable gravity can constitute war crimes or crimes
against humanity.[244]
Even in those cases when rape does not constitute torture, it can still
constitute a risk of inhuman and degrading treatment.

The United Nations High Commissioner for Refugees (UNHCR)
has determined that accelerated procedures may be used, but they should only be
applied to cases which are “clearly abusive” or “manifestly
unfounded”.[245]
These types of cases are defined as those which are clearly fraudulent or not
related to the criteria for the granting of refugee status laid down in the
Refugee Convention nor to any other criteria justifying the granting of asylum.[246]
However, whilst UNHCR accepts the use of accelerated procedures in limited
circumstance, the use of detention is not supported.[247]

Acknowledgements

This report was written by Gauri van Gulik, women’s
rights researcher and advocate for Europe. It was reviewed by Liesl Gerntholtz, director of the Women’s Rights Division; Ben Ward, deputy director of
the Europe and Central Asia Division; Bill Frelick, director of the Refugees
Division; Gerry Simpson, researcher and advocate of the Refugees and Migrants
Division; Simone Troller, researcher in the Children’s Rights Division;
and Clive Baldwin, senior legal advisor. Program review was conducted by Andrew
Mawson.

The author is sincerely grateful to several excellent
organizations and individuals in the UK who urged us to work on this and made
it possible: Bail for Immigration Detainees (BID), Asylum Aid, Refugee and
Migrant Justice, the Crossroads Women Center, solicitors at Wilson & Co,
Lawrence Lupin and Doughty Street Chambers, the UNHCR, and the Immigration Law
Practitioner’s Association (ILPA). Most importantly, the author would
like to thank the women who in the midst of an extremely vulnerable and
sometimes desperate situation wanted to share their stories.

We acknowledge with gratitude the financial
support of Arcadia and the other donors who have supported the work of the
Women’s Rights Division of Human Rights Watch.

[8]
Convention relating to the Status of Refugees (Refugee Convention), 189
U.N.T.S. 150, entered into force April 22, 1954, acceded to by the United
Kingdom 1954 and the Protocol Relating to the Status of Refugees, 606 U.N.T.S.
267, entered into force October 4, 1967 (abolishing the Refugee Convention's
temporal and geographic restrictions), acceded to by the United Kingdom September
4, 1968.

[11]
The legal basis for humanitarian protection is article 339c of the consolidated
Home Office Immigration Rules, available at http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/
(accessed November 25, 2009).Humanitarian protection can be granted to a person
who is not a refugee if there are “substantial grounds for believing that
the person would face a real risk of suffering serious harm in the country of
return; and the person cannot obtain effective protection from the authorities
of that country (or will not because of the risk of suffering serious
harm).” The Asylum Policy Instruction (API), “Humanitarian
Protection,” November 2008, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/humanitarianprotection.pdf?view=Binary
(accessed September 25, 2009). Discretionary leave is only granted in
exceptional circumstances, for example when there might be a breach of the
right to family life as prescribed in article 8 of the European Convention on
Human Rights (ECHR), which states: “1. Everyone has the right to respect
for his private and family life, his home and his correspondence.”

[13]
European Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by
Protocols Nos 3, 5, 8, and 11 which entered into force on September 21, 1970,
December 20, 1971, January 1, 1990, and November 1, 1998, respectively, art.
5(1)(f).

[28]
Immigration and Asylum Act 1999; the Nationality, Immigration and Asylum Act
2002; UK Borders Act 2007 and most recently, the Borders, Citizenship and
Immigration Act, which was given royal assent on July 22, 2009, available at http://www.opsi.gov.uk/acts/acts2009/ukpga_20090011_en_1
(accessed November 4, 2009).

[31]
Currently these are: Brook House near Gatwick, Campsfield House north of Oxford,
Colnbrook close to Heathrow and “most secure” centre, Dover near
the port of Dover, Dungavel House between Muirkirk and Strathaven,
Harmondsworth near Heathrow where men go through the Detained Fast Track
procedure, Haslar near Portsmouth Harbour, Lindholme in South Yorkshire,
Oakington near Cambridge, Tinsley House near Gatwick and Yarl’s Wood near
Bedford where women go through the Detained Fast Track procedure, http://www.bia.homeoffice.gov.uk/managingborders/immigrationremovalcentres/.

[33]
Home Office, “Asylum statistics United Kingdom 2008,” Home Office
Statistical Bulletin, September 14, 2009, table 2l. In the same year, 30
percent of male applicants were granted status.

[34]
This is not segregated by gender, so this is the total figure of appeals that
were allowed for all asylum applicants. Home Office, “Asylum statistics
United Kingdom 2008,” Home Office Statistical Bulletin, September 14,
2009, table 5a.

[35]Home Office, “Control of
Immigration: Quarterly Statistical Summary, United Kingdom - First Quarter
2009,” p. 1 and Home Office, “Control of Immigration: Quarterly
Statistical Summary, United Kingdom - First Quarter 2009,” p. 1.In these
quarterly statistics there is no disaggregated information according to gender.

[37]
UN High Commissioner for Refugees, Guidelines on International Protection No.
1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951
Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May
2002, HCR/GIP/02/01, http://www.unhcr.org/refworld/docid/3d36f1c64.html
(accessed September 30, 2009), para. 4.

[46]See
also specifically on the experiences of rape survivors and claims based on the
Refugee Convention, Black Women’s Rape Action Project and Women Against
Rape, “Misjudging Rape. Breaching Gender Guidelines & International
Law in Asylum Appeals,” December 2006.

[57]See
for example Will Somerville, “Immigration under New Labour”,
Bristol 2007, Don Flyn, “British Immigration Policy, New Labour, and the
rights of migrants: A critical assessment,” http://www.signsofthetimes.org.uk/flynn%5Btextonly%5D.html
(accessed November 6, 2009) and Jonathan Ensor and Amanda Shah, The United
Kingdom, in Jan Niessen et.al. (Eds.), “Current Immigration Debates in Europe: A Publication of the European Migration Dialogue,” September 2005.

[63]Human
Rights Watch Interview with UKBA official, September 15, 2009. A specific
asylum procedure for men, as was the case, is discriminatory in nature and
would not be in line with the UK’s human rights obligations, for example
under article 14 of the ECHR.

[65]Article
5 (1) (f) of the ECHR reads: “Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law: (…)
f) the lawful arrest or detention of a person to prevent his effecting an
unauthorized entry into the country or of a person against whom action is being
taken with a view to deportation or extradition.”

[66]House
of Lords, R (Saadi) v Secretary of State for the Home Department, 1 WLR 3131,
October, 2002.

[85]Home
Office, “DFT & DNSA Intake Selection,” AIU instruction,
para.2.3 includes: “Those for whom there has been a reasonable grounds
decision taken [and maintained] by a competent authority stating that the
applicant is a potential victim of trafficking or where there has been a
conclusive decision taken by a competent authority stating that the applicant
is a victim of trafficking; Those in respect of whom there is independent
evidence of torture.”

[132]Council
of Europe, “Convention on Action against Trafficking in Human Beings and
its Explanatory Report,” Council of Europe Treaty Series - No. 197,
Warsaw, May 16, 2005, ratified by the United Kingdom December 17, 2008.

[147]Council
of Europe: Commissioner for Human Rights, Memorandum by Thomas Hammarberg,
Council of Europe Commissioner for Human Rights, following his visits to the United Kingdom on 5-8 February and 31 March-2 April 2008. Issues reviewed: Asylum and
immigration, 18 September 2008, CommDH (2008)23, http://www.unhcr.org/refworld/docid/48d351c42.html
(accessed October 1, 2009), paras. 21-23.

[159]
For an elaborate study into how rape victims are perceived in the asylum
process: Helen Baillot, Sharon Cowan, and Vanessa E. Munro, “Seen but Not
Heard? Parallels and Dissonances in the Treatment of Rape Narratives across the
Asylum and Criminal Justice Contexts,” Journal of Law and Society, vol.
36, issue 2, pages 195 – 219.

[175]See
most recently: Human Rights Watch, Bring the Gun or You’ll Die:
Torture, Rape, and Other Serious Human Rights Violations by Kenyan Security
Forces in the Mandera Triangle, June 29, 2009, http://www.hrw.org/en/node/83969/section/1
(accessed October 4, 2009) and Human Rights Watch, All the Men Have Gone:
War Crimes in Kenya’s Mt. Elgon Conflict, July 2008,
http://www.hrw.org/sites/default/files/reports/kenya0708_1.pdf (accessed
February 10, 2010).

[179]Jamaica is in the top 5 of countries of origin of women placed into fast track and cases
included claims based on persecution because they are lesbian. See also Claire
Bennett, Asylum Aid, “Relocation, Relocation. The impact of internal relocation
on women asylum seekers,” November 2008, p. 61.

[180]Immigration
Advisory Service, “The Use of Country of Origin Information in Refugee
Status Determination: Critical Perspectives,” May 2009, p. 9.

[206]
A more thorough nationality assessment later carried out by expert of the
region Brian Allen (at the request of her solicitor), stated “Her accent
[in Swahili] is very much that of a Somali Bajuni,” June 26, 2009.

[207]Written
comments by Gabriella Bettiga, Head of Immigration at Lawrence Lupin
Solicitors, October 26, 2009.

[208]Reasons
for refusal letter for Ayoka M., April 6, 2009 and Human Rights Watch interview
with her solicitor from Wilson & Co, May 22, 2009.

[209]Asylum
& Immigration Tribunal, Appeal Determination and Reasons, Between [Ayoka
M.] and the Secretary of State for the Home Department, April 19, 2006.

[210]
High Court of Justice Queen’s Bench Division, the queen on the
application of PB v Secretary of State for the Home Department, EWHC 364
(Admin), February 6, 2008, quoting the findings of the Case owner of May 2007,
para. 15.

[218]
The Helen Bamber Foundation is one of two organizations that take appointments
from traumatized asylum seekers for psychological treatment and whose
appointments can suspend the asylum process. The other organization is the
Medical Foundation for the Care of Torture Victims.

[222]Although
according to a UKBA official, the UK now has an agreement with China that enables people to be sent back. Human Rights Watch Interview, UKBA official,
September 15, 2009.Phil Woolas also recently announced that UKBA would start
sending people back to Zimbabwe as well.

[224]This
relates to cases where there is evidence that the asylum seeker has criminal
antecedents and/or affiliations which are likely to pose a risk to public order
or national security. See the Refugee Convention, art. 31, and the associated
UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the
Detention of Asylum Seekers, February 1999,
http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (accessed June 2009).

[229]European Convention for the Protection
of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force
September 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered
into force on September 21, 1970, December 20, 1971, January 1, 1990, and
November 1, 1998, respectively, art. 5(1)(f).

[230]European
Court of Human Rights, Case of Saadi v. the United Kingdom, Application no.
13229/03, Judgment of 29 January 2008, available at www.echr.coe.int, para. 74.

[235]
Convention relating to the Status of Refugees (Refugee Convention), 189
U.N.T.S. 150, entered into force April 22, 1954, acceded to by the United
Kingdom 1954 and the Protocol Relating to the Status of Refugees, 606 U.N.T.S.
267, entered into force October 4, 1967 (abolishing the Refugee Convention's
temporal and geographic restrictions), acceded to by the United Kingdom 4
September 1968.

[246]
Ibid. In addition, UNHCR supports the processing of claims on an accelerated
basis where there are compelling protection needs, see UN High Commissioner for
Refugees, Procedural Standards for Refugee Status Determination Under UNHCR's
Mandate, 20 November 2003, available at: http://www.unhcr.org/refworld/docid/42d66dd84.html
[accessed 22 October 2009]. See Unit 4.6 ‘Accelerated RSD
Processing’, 4.6.3 lists the categories of applicant who may have
“compelling protection needs”; these include, inter alia, those
“manifetly in need of protection intervention” and “women who
are at risk in the host country”.

[247]
UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the
Detention of Asylum Seekers (February 1999) and UNHCR ExCom Conclusion No. 44
(XXXVII) of 1986 on the detention of refugees and asylum seekers.